aw 93
| JUDGMENT No. .,.......,...,.,. | I ,.,........ . |
C A T C H W O R D S
CRIMINAL LAW - Appeals and New Trials - Appeal against sentence - appeal against suspension of head sentence - whether trial judge's sentencing discretion miscarried - rehabilitation - whether rehabilitation occurring while an escapee is appropriate factor to consider in sentencing -whether likelihood of prisoner remaining in custody despite suspension of sentence due to other outstanding charges in another state is an appropriate factor to consider in sentencing.
Druas of Dependence Act (A.C.T.1 S. 165(1)
Druas of Dependence Reaulations (A.C.T.) S. 6
B v. Thomvson (1987) 37 A.Crim.R. 97
| - | R v. Osenkowski 1982 30 SASR 212 |
| THE OUEEN V. MARY SUSAN FLYNN |
| No. AG 33 of 1993 |
| CORM: | Spender, Einfeld and Higgins JJ | | PLACE : | Canberra | |
| |
| IN THE FEDERAL COURT OF AUSTRALIA | 1 | | AUSTRALIAN CAPITAL TERRITORY | 1 | |
| DISTRICT REGISTRY | 1 | No. AG 33 of 1993 | |
| |
BETWEEN: THE OUEEN
Appellant
Respondent
MINUTES OF ORDER
| JUDGES MAKING ORDER: | Spender, Einfeld and Higgins JJ. |
| DATE OF ORDER: | 28 October 1993 |
| WHERE MADE: | Canberra |
| THE COURT ORDERS THAT: |
The appeal be dismissed.
NOTE :
| Settlement and entry of orders is dealt with in |
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
| AUSTRALIAN CAPITAL TERRITORY | 1 | NO. AG 33 of 1993 |
| DISTRICT REGISTRY | 1 |
| GENERAL DIVISION | 1 |
BETWEEN: THE OUEEN
Appellant
AND: MARY SUSAN FLYNN
Respondent
| CORAM : | Spender, Einfeld and Higgins JJ |
| PLACE : | Canberra |
| m: | 28 October 1993 |
EX TEMPORE REASONS FOR JUDGMENT
SPENDER J: This is a Crown appeal against a sentence imposed by Miles CJ on Mary Susan Flynn on 14 May 1993. MS Flynn pleaded guilty to an offence of being in possession for the purpose of supply of 1.615 kilograms of cannabis. The penalty for that offence is provided by S. 165(1) of the Druss of Deuendence Act (A.C.T.) 1989, which provides that a maximum penalty of $20,000 fine, or 10 years imprisonment, or both where the quantity of cannabis to which the charge relates is a trafficable quantity,
| but not a commercial quantity. |
Regulation 6 of the Druas of Dependence Reaulations (A.C.T. L, by reference to Schedule 2, describes as a trafficable quantity of cannabis, an amount exceeding 100 grams and a commercial quantity as being an amount exceeding 100 kilograms.
The circumstances leading to the plea of guilty are these. On 24 March 1993 MS Flynn, who was a resident of South Australia, visited a house in Yarralumla in the Australian Capital Territory. As it happened, the police were there executing a search warrant in respect of drugs of dependence, and as the sehtencing judge noted, it also happened that MS Flynn then had with her in a suitcase, neatly packed, $30,000 worth of high grade cannabis. She had grown, harvested and packaged the cannabis herself. She said in evidence before the Chief Justice that she was on her way to Sydney to sell it but had stopped off in Canberra where friends were celebrating birthdays.
She was charged as Angela Mary Kincaid, a name under which she had been known in South Australia. She pleaded guilty before the Magistrate at the first opportunity and she maintained that plea in the Supreme Court. Whilst at the Magistrates Court, she was recognised by a police officer (who was the son of a family friend) as Mary Susan Flynn, formerly of Captains Flat and Queanbeyan, who had been missing for 13 years. She was remanded in custody in the Magistrates Court and spent some six weeks in custody pending her plea on 14 May 1993, to the charge of possessing a trafficable quantity of cannabis for the purpose of
She said that her purpose was to sell the cannabis in Sydney. The sentencing judge expressed the view that there was at least the possibility that some of the cannabis would be used during birthday celebrations.
The prior history of the respondent to this appeal involves, in the time prior to 1980, a round of drugs, prison and increasingly serious crime. When she was released from prison in 1980, she was subsequently charged with harbouring an escapee and was remanded in custody. Whilst in custody, she is alleged to be involved in an incident involving deprivation of liberty to a prison officer. It is alleged that she subsequently escaped whilst on remand.
At the time of her apprehension in the Australian Capital Territory, she was wanted in New South Wales in respect of the offences of harbouring an escapee, of deprivation of liberty of a prison officer and of escaping whilst on remand. We have been told from the bar table by Mr Donald, counsel for the respondent of this appeal, that in fact she has entered pleas of guilty to the offences of harbouring and of escaping whilst on remand, and that the of fence of kidnapping has been altered to one of common assault to which she has also pleaded guilty. She is presently on bail in respect of those matters and will be sentenced in the District Court in New South Wales on 12 November.
| After her escape since 1980, she has lived a life under assumed names, cut-of f from contact with her former lif e, and in |
particular, from her friends and family in the Queanbeyan area and has lived in Adelaide. In 1992, she suffered an injury which put her into hospital for about 10 days. Her evidence was that she had planted some cannabis seeds because she was unable to attend to her legitimate business of nurturing and selling plants other than those which are prohibited. The learned sentencing judge having referred to a number of matters associated personally with her said in his sentencing remarks:
| " | The | presen t | o f f e n c e c a r r i e s | a maximum | o f | 10 |
| years imprisonment and a f i n e of $20,000 | or |
| bo th . | People | who resort | t o this T e r r i t o r y for |
| the | purpose | o f | t r a f f i c k i n g o f | drugs | i n c l u d i n g |
| cannabis | can e x p e c t heavy p e n a l t i e s | i f | they t u r n |
| their minds t o the ques t ion . | " |
His Honour said:
| " Although, | the ev idence i n the present | c a s e |
| precludes | me | from | drawing | t h a t | sort | o f |
| conclus ion | i n r e l a t i o n | t o | t h i s | o f f e n d e r , | the |
amount o f cannabis invo lved , 60 ounces or 615
| grams | i n 60 | bags | w i t h an | es t imated | v a l u e o f |
| $30,000 | i s so great t h a t a cus tod ia l sen tence i s |
| i n e v i t a b l e . | " |
His Honour noted that custodial sentences in some similar cases in this court in the past have been suspended on a condition that a substantial fine be made but he noted that MS Flynn had no assets and so that option was not one available to him. He also mentioned that he had considered community service, but in the light of the pending charges in New South Wales, thought that also an inappropriate course to adopt.
He said:
| " | She h a s achieved an ex t raord inary measure o f |
| r e h a b i l i t a t i o n . | " | |
This focuses on one of the two bases on which the Crown has launched this appeal, and I will return to that aspect shortly.
His Honour noted that she had been in custody since 24
March in the Remand Centre and then he said:
| Were | she | t o be | r e l e a s e d , | she | would, | a s I |
| understand | i t , c o n t i n u e | t o be | i n c u s t o d y b u t i n |
| New | Sou th | Wales where | she | probab l y b e l o n g s and |
| t h a t would be | t o some e x t e n t o n l y a s a r e s u l t o f |
| the p r e s e n t | o f f e n c e . | I | e x p e c t | t h a t she | would |
| c o n t i n u e t o be | i n c u s t o d y u n l e s s granted | b a i l i n |
| New Sou th Wales and | u n t i l the New Sou th Wales |
| p o l i c e | and | p r o s e c u t i o n | a u t h o r i t i e s | worked | o u t |
| what | t o do abou t her c a s e . | " |
This aspect is the basis of the second submission by the Crown on its appeal, it being asserted that the issue of the outstanding matters in New South Wales assumed too an important role in his Honour's view of the matter and that he suspended the sentence substantially because he had assessed the likely outcome of the New South Wales charges and deferred to the prosecution of those matters rather than proceeding to deal with the ACT offence as the matter with which he should primarily be concerned.
His Honour concluded his sentencing remarks by saying:
| " | In | the | e x t r a o r d i n a r y | c i rcums tances | o f | the |
| m a t t e r , | I | think | it i s i n a p p r o p r i a t e | t o oppose a |
| p r i s o n sentence b u t nevertheless t o suspend | it |
He imposed a sentence of 18 months imprisonment, the sentence to be suspended and MS Flynn to be released forthwith upon her entering into a recognisance self, without surety, in the sum of $1000 to be of good behaviour for a period of two years.
It is not contended by the Crown that the head sentence is not appropriate. The appeal, therefore, is against the suspension of that head sentence. Whether a sentence is to be suspended or not is an exercise of discretion in the sentencing judge. The review of the exercise of that discretion involves the same principles as the review of the judicial discretion exercised when imposing sentence. Consistently with those principles (which are well known and are to be found in, amongst other things, The Oueen v Tait and Bartley (1979) 24 ALR 473 and The Oueen v Valentini and Garvev 1982 A.Crim.R. 170), the appellate court should only interfere if it is shown that the sentencing judge was in error, in that he acted on a wrong principle or that he misunderstood or wrongly assessed some salient feature of the evidence; in particular the error may appear in what the judge says in the proceedings or in the sentence itself may be so excessive or inadequate as to manifest such error.
The point in this appeal is a very narrow one and that
is whether it has been demonstrated that it was an improper
exercise of the discretion in the sentencing judge to suspend the
| sentence in all the circumstances. |
Turning to the two matters on which the Crown primarily relies, in my opinion the sentencing judge was right to conclude that MS Flynn has achieved an extraordinary measure of rehabilitation. The facts are that notwithstanding an unpromising criminal history she has, on the evidence before the sentencing trial judge, for 13 years, not been convicted of any criminal offence. Secondly, while she has been frank about her continued consumption of cannabis, she has achieved rehabilitation from her addiction to narcotic substances.
Both of these aspects justify the description by the sentencing judge that her rehabilitation has been achieved to an extraordinary measure. The Crown, however, points to two matters, both of which, it seems to me, have substance. The first is that the rehabilitation occurred during a period of time when she was an escapee. In _R v Thom~son (1987) 37 A.Crim.R.
97 the New South Wales Court of Criminal Appeal held, inter alia,
that :
| " | R e h a b i l i t a t i o n w i l l always be taken i n t o account however i t a r i s e s b u t when i t has a r i s e n through s e l f - t a k e n l iberty by a b a i l absconder i t w i l l |
| be | given | less s i g n i f i c a n c e than i f i t had | taken | |
| p lace | i n t h e o r d i n a r y passage | o f time. | " | |
The second matter touching the question of
rehabilitation focuses on the circumstances of the offence to
which she pleaded guilty. It can rightly be said that that
| offence is a serious matter, and which might indicate a relapse |
to her pre-1980 conduct. Both points are well taken but do not gainsay the conclusion of the sentencing judge that MS Flynn has achieved an extraordinary measure of rehabilitation. That particular circumstance is of real significance in whether to exercise the discretion to suspend the head sentence.
The second matter relates to the issue of outstanding matters in another state. In the view I take of the remarks by the sentencing judge, the reference to what might happen were she to be released simply recognises the fact that there were
outstanding matters which would likely require her spending time in custody, at least until a decision had been made by the New South Wales police and prosecution authorities as to what ought to be done, having regard to the lapse of time and the circumstances which now exist concerning the outstanding New South Wales charges. That seems to be not an irrelevant consideration. I do not see his Honour's remarks as indicating an improper deferral of the sentencing function in respect of the Australian Capital Territory offence in favour of the matters which she faces in New South Wales.
It seems to me that this Crown appeal against sentence reflects a concern that suspended custodial sentences might become the norm in respect of possession of a trafficable quantity of cannabis for the purpose of supply. That fear is not justified, as the remarks of the sentencing judge in this case on their proper interpretation demonstrate. These circumstances of MS Flynn are quite extraordinary and the sentence in her case
| value in establishing a norm can be discounted. Miles CJ made | has to be fashioned by the circumstances as they appear. Their |
| it plain that the features of MS Flynn's sentence are quite special. Any fear that the suspension of custodial sentences ought to be the norm in relation to similar offences is not well placed. |
| Finally, it seems to me that the observations of King CJ in The Queen v Osenkowski 1982 30 SASR 212 at that page have a proper application to the circumstances of this case. His Honour said: |
"
| I t | i s i m p o r t a n t | t h a t p r o s e c u t i o n | appea l s | shou ld |
| not | be | a l l owed | t o | c i r c u m s c r i b e | u n d u l y | the |
| s e n t e n c i n g | d i s c r e t i o n | o f | judges . | There | mus t |
| a lways be | a p l a c e | for | the exercise | o f m e r c y |
| where | a | judge ' s | sympath ies | a r e | r e a s o n a b l y |
| e x c i t e d by the c i r cums tances o f the c a s e . | There |
| must a lways be | a p l a c e | f o r the leniency which |
| h a s | t r a d i t i o n a l l y | been | ex t ended | even | t o |
| o f f e n d e r s w i t h bad r e c o r d s | when | the judge | forms |
| the | v i e w | a l m o s t | i n t u i t i v e l y i n | the | c a s e | o f |
| exper i enced | judges , | t h a t | leniency | a t | t h a t |
| p a r t i c u l a r | s t a g e | o f | the | o f f e n d e r ' s | l i f e m i g h t |
| l e a d | t o r e f o r m . | The proper | role f o r p r o s e c u t i o n |
| appea l s , | i n m y v iew, | i s t o e n a b l e | the c o u r t s t o |
| e s t a b l i s h | and | m a i n t a i n | adequate | s t andards | o f |
| punishment | for | cr ime; | t o e n a b l e | i d i o s y n c r a t i c |
| v i e w s | o f | i n d i v i d u a l | v i e w s | o f | i n d i v i d u a l | judges |
| a s t o p a r t i c u l a r | c r imes or | t y p e s o f c r imes | t o be |
| c o r r e c t e d and | o c c a s i o n a l l y t o correct | a | sentence |
| which | i s so | d i s p r o p o r t i o n a t e | t o the | s e r i o u s n e s s |
| o f the crime | a s t o shock the p u b l i c consc i ence . |
In this case, in my opinion, there is nothing to suggest
that the discretion in the sentencing judge to suspend the
sentence in the special circumstances of the case in any way
| miscarried and I would dismiss the appeal. |
| EINFELD J: | I agree with the reasons of the learned presiding |
judge and having nothing to add.
HIGGINS J: I also agree with the reasons of the learned presiding judge and the conclusion which he has expressed. I also dismiss the appeal.
| SPENDER J: | The order of the court is that the appeal be |
| dismissed. |
| I | cert i fy t h a t this and | the |
preceding n i n e ( 9 ) pages a r e a t r u e copy o f the reasons for
| judgment | h e r e i n o f t h e Court . |
Date: 28 October 1993
| Counsel for the appe l lan t | : Mr X. | J . Cr i sp in Q.C. | and |
Mr S . E . Loomes
| i n s t r u c t e d by | : | Direc tor o f Pub l i c Prosecut ions |
Counsel f o r the respondent : M r W. L. Donald
| i n s t r u c t e d by | : | Macphillamy Donald | & Co. |
| Date o f Hearing | : 28 October 1993 |